OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern. In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.
Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify. In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue. This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.
OSHA Bathroom Requirements
In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:
providing employees with prompt access to a bathroom; and
ensuring the workplace bathroom is maintained in a sanitary condition.
Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading →
Although not historically a hotbed of OSHA / Employment law activity, access to bathrooms by both employees and members of the public has become a high profile issue of late. OSHA has always required employers to provide employees with prompt access to sanitary toilet facilities, to minimize adverse health risks. Recently, however, OSHA and other federal, state and local authorities began to prohibit discriminatory practices with regard to restroom access based on the principle that individuals have the right to use facilities consistent with their gender identity. There are also a host of requirements under the Americans with Disabilities Act that must be met for a bathroom to be considered accessible and usable by an individual with a disability. This webinar reviewed the requirements in these areas, and provided specific strategies to address this new and complex area of the law.
Participants in this complimentary webinar learned about the following:
OSHA rules regarding accessibility to bathroom facilities and sanitation issues
Transgender workplace obligations
Federal Agency Interpretations of Title VII to include discrimination based on gender identity or transgender status
State laws regarding discriminatory practices in regard to restroom access
Best practices for overcoming typical bathroom ADA accessibility issues
In the last few months, hardly a day has gone by without some news regarding transgender bathroom access. Perhaps the catalyst for the increased attention on this issue was North Carolina’s passage of its controversial H.B. 2 law which, among other things, restricts transgender people’s access to public restrooms and blocks local governments from passing anti-discrimination laws to protect LGBT individuals.
As a byproduct of the increasing visibility of this issue, both the U.S. Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) have strongly supported transgender rights. Indeed, last year, OSHA promulgated its “Transgender Restroom Access Guide” with the core Principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity. OSHA linked this to safety and health by reasoning that: